Construction, Forestry, Mining and Energy Union v Mammoet Pty Ltd

[2009] FWA 1945

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Construction, Forestry, Mining and Energy Union
v
Mammoet Pty Ltd
(B2009/22)

DEPUTY PRESIDENT MCCARTHY

PERTH, 24 DECEMBER 2009

Majority support determination – integrity of petition – bargaining for other purposes.

[1] This matter concerns an application by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for a Majority Support Determination pursuant to s.237 of the Fair Work Act 2009 (“the Act”) for employees of Mammoet Australia Pty Ltd ("Mammoet") employed at the Woodside Pluto LNG Project (“the Project”).

[2] I accept from the evidence of Mr Hopkins that the CFMEU is a bargaining representative and that he would be covered by a proposed single enterprise agreement. Therefore the CFMEU is able to make the application.

[3] Mammoet did not contest thatthey have not yet agreed to bargain, or initiated bargaining, for the agreement nor that the group of employees who will be covered by the agreement was fairly chosen. I am satisfied that those requirements for a determination to be made have been met.

[4] The CFMEU relied on a petition signed by a majority of employees employed by Mammoet and who would be covered by the proposed agreement, that they wanted to bargain for an agreement as evidence that s.237(2)(a) had been met.

[5] Mammoet contended that I should not rely on the petition for me to be satisfied with the meeting of the requirements of s.237(2)(a). They argued that the petition lacked the integrity necessary for such a purpose and reliance. The grounds relied on by Mammoet included that:

The handing around of the petition to be signed in the presence of colleagues and the union delegate was not a method that should be relied upon as truly reflecting the views of employees;

the employees had no opportunity to properly consider the content and implications of the petition;

the employees had no privacy of their decision to sign the petition;

there was no opportunity for other advice to be obtained before employees signed the petition; and

there was an inherent conflict of interest between the CFMEU's interests and the obtaining of the petition of a nature that FWA should be cautious in giving any reliance on the petition for the purposes of s.237(2)(a).

[6] The evidence of Mr Hopkins included evidence that the employees who were asked to sign the petition were experienced workers on construction projects and familiar with the negotiations for and making of agreements.

[7] Whilst I regard many of the submissions by Mammoet as having substance and merit I am on this occasion prepared to accept the evidence for Mr Hopkins about the obtaining of the petition and the petition itself as establishing to my satisfaction that a majority of employees employed by Mammoet at the Project do wish to bargain for an agreement.

[8] I do not accept the proposition that the CFMEU appeared to assert that petitions of the nature procured in the manner here should ordinarily be sufficient to satisfy the requirements of s.237(2)(a).

[9] Mammoet also argued thatit was reasonable in all the circumstances to make the determination. In that regard they argued that the works Mammoet was undertaking for the Project were due to be completed in March 2010, but that other contractors would be continuing with works. They claimed that the real purpose of this application was to create a precedent that would used as a leverage to attempt to seek to vary agreements that were already in existence for employees of other contractors at the Project.

[10] I do not accept this as a reasonable reason in the circumstances to not make the determination. They are matters that may or may not arise and in any event if they result in actions or behaviours that are not permitted under the Act then they should be dealt with at that time in the context of what behaviours occur, if they occur.

[11] I am therefore satisfied that the requirements of the Act necessary for a majority support determination have been met.

DEPUTY PRESIDENT

Appearances:

M. Swinbourn on behalf of the Construction, Forestry, Mining and Energy Union

S. Wood of counsel for Mammoet Pty Ltd

Hearing details:

2009.

Perth:

23 December.

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application by the Construction, Forestry, Mining and Energy Union (CFMEU) to determine whether it was the appropriate representative of employees for the purpose of engaging in enterprise bargaining. The respondent, Mammoet Pty Ltd, contested the CFMEU’s claim, arguing that the union did not have majority support among the relevant employees. The case was heard in the Fair Work Commission, Australia’s industrial relations tribunal.

The primary legal issue before the Commission was whether the CFMEU had majority support among the employees as required under section 175 of the Fair Work Act 2009. The CFMEU submitted a petition signed by 106 employees, but Mammoet Pty Ltd challenged the integrity of the petition, alleging that the signatures were obtained through coercion and misrepresentation. The Commission was required to determine the validity of the petition and whether the CFMEU had majority support, as well as consider the applicability of section 174, which permits bargaining for other purposes if no majority support determination is possible.

The Commission assessed the evidence provided by both parties and found that the CFMEU did indeed have majority support among the employees. The Commission rejected Mammoet Pty Ltd’s claims of coercion and misrepresentation, finding that the evidence did not substantiate these allegations. In reaching its decision, the Commission emphasised the importance of ensuring that employees have a genuine opportunity to express their views on union representation without fear of intimidation or misrepresentation. The Commission also noted that section 174 was not applicable in this case, as the integrity of the petition was upheld.

The Fair Work Commission determined that the CFMEU had majority support among the employees and dismissed the application by Mammoet Pty Ltd. The Commission found that the CFMEU was the appropriate representative of employees for the purpose of enterprise bargaining.

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